6th Circuit Upholds Tennessee and Kentucky Bans on Gender-Affirming Treatment for Transgender Minors

On September 28th, 2023, the 6th Circuit Court of Appeals upheld laws in Tennessee and Kentucky that placed bans on transition treatment for transgender minors. These include bans on treatments including puberty blockers, hormones, and surgery. Each law, however, has exceptions. In Tennessee, treatments that began before the effective date of the law will be allowed to continue. Additionally, Kentucky will allow continued treatment with drugs or hormones to allow for systematic reductions in their use. Further, both states allow the continuation of these treatments for cases of sexual development disorders and certain injuries. In a vote of 2-1, the court, based in Cincinnati, Ohio, rejected an argument by families of transgender children who challenged the law saying that the ban “discriminated on the basis of sex” [1] The court ruled that “no such form of discrimination occurs in either law.” As the law applied to “sex-transition treatments for all minors, regardless of sex”, the regulation lacked “any of the hallmarks of sex discrimination.” In the majority opinion, the court clearly stated this saying that “by limiting access to sex-transition treatments to ‘all’ children, the bans do not ‘constitute a denial of equal protection of the laws.’” Asserting this, the court concluded that there would be no reason to apply “heightened review of these laws.” [2]

They further responded to the plaintiffs' claims by asserting that “references to a child’s biological sex in the laws does not alter the conclusion.” While the court recognized that “by the nature of their biological sex, children seeking to transition use distinct hormones for distinct changes” they asserted that this does not invalidate lawmaking in this area. They cited the conclusion in Dobbs v. Jackson Women’s Health Organization and in Geduldig v. Aiello “ that laws regulating ‘medical procedure[s] that only one sex can undergo’ ordinarily do not ‘trigger heightened constitutional scrutiny.’” [3]

In addition to rejecting the assertion by the plaintiffs that the laws in Tennessee and Kentucky discriminated on the basis of sex, the courts addressed the question of the harm done to individuals, in this case transgender minors, both when denying or allowing these sex-transition treatments. On this point, the court recognized “Both sides have the same fear, just in opposite directions.” The court ultimately stated that, in this instance, the cost-benefit decision was not for judges to make, and, as elected representatives had already made this decision, there was no reason for the judges to second-guess their conclusion. [4]

Ultimately, the court, while asserting the existence of gender dysphoria, the distress caused by it, and the value of providing care to children facing it, questioned whether “certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under.” As they recognized that it is difficult to be certain about “predicting the long-term consequences of abandoning age limits of any sort for these treatments”, they asserted that it would not be constructive for judges to announce “new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges”, especially as recommendations for these practices are changing.

In the dissent, Judge Helene White rejected these assertions stating that the Tennessee and Kentucky statutes "cannot pass constitutional muster" and "intrude on the well-established province of parents to make medical decisions for their minor children." [5] [6]

According to a press release, the Tennessee plaintiffs in the 6th Circuit case were represented by Lambda Legal, the American Civil Liberties Union, the ACLU of Tennessee, and Akin Gump Strauss Hauer & Feld. In the statement, they wrote, “Denying transgender youth equality before the law and needlessly withholding the necessary medical care their families and their doctors know is right for them has caused and will continue to cause serious harm…We are assessing our next steps and will take further action in defense of our clients and the constitutional rights of transgender people in Tennessee and across the country.” [7] [8]

This is the second ruling upholding laws denying sex-transition treatments for transgender children, after the 11th Circuit upheld Alabama limits on medications for transgender youth. [9] This is interesting as several federal district courts in Arkansas, Florida, Georgia, and Indiana, have overturned bans on gender-affirming care, with Arkansas finding they violated the equal protection and due process clauses of the Fourteenth Amendment, and the First Amendment of the United States Constitution.